Commission agrees US access to EU citizen personal data

Hails negotiating triumph, somewhat unconvincingly

By John Lettice,
17 Dec 2003

The European Commission has struck a deal with the US Department of Homeland Security allowing the handing over of data on EU citizens travelling to the US by airlines. The US currently requires access to airlines' Passenger Name Record (PNR) data, while EU privacy law forbids its transfer to the US. After some amendments which the Commission describes as concessions, however, the US' proposed treatment of this data has been deemed sufficient to rate an "adequacy" finding, and thus passes muster in the Commission's view.

According to Frits Bolkestein, the Commission rep who presented the proposals to the European Parliament Committees on Citizens' Freedoms and Rights yesterday evening, the hard-wrung concessions are as follows. The amount of data to be transferred has been reduced to 34 elements, compared to the 39 that a recent European Parliament report felt "excessive." The US will not however require airlines "to collect any data where any of these 34 elements would be empty" (no, we're not altogether sure how that works either), so Bolkestein reckons it will come down to 10-15 in practice.

Bolkestein also claims that the retention period has been cut from a laughable 50 years (laughable at both ends, as the more recent US demand was seven) to 3.5 years. This compares with an EU regulation of 72 hours for access, with archiving allowable for up to three years. Significantly, Bolkestein tells us the 3.5 years covers the lifespan of the current agreement, i.e. the Commission has got the US to agree not to hold onto data after the agreement expires. Does this still hold good if (when) the agreement is renewed? One wonders.

Concession three is that the deal will not cover the US Computer Assisted Passenger Pre-Screening System (CAPPS II), which will "only" be considered in a forthcoming round of discussions, and in any event won't be dealt with until such time as Congress has stopped being worried about the system. So actually this concession only counts as a concession if the Commission has stopped the US experimenting on foreigners. Which we suppose it might have.

Alongside these we have "stronger guarantees with respect to overall US compliance," annual joint reviews, and a US acceptance that EU data protection authorities amy represent EU citizens seeking redress. The US Department of Homeland Security and Customs and Border Protection will not bulk share data with other agencies, and the US has agreed to delete combatting serious domestic crime from its list of uses for the data. This does not however meet the EU objective of restricting the use of data to fighting terrorism. As the DHS says: "PNR data is used by CBP strictly for purposes of preventing and combating: 1) terrorism and related crimes; 2) other serious crimes, including organized crime, that are transnational in nature; and 3) flight from warrants or custody for the crimes described above."

That would seem to leave adequate scope for mission-creep.

In addition to considering Bolkestein's presentation, which can be found here, European Parliamentarians would do well to consider the DHS' analysis of the deal it's clinched. Note that it claims Bolkestein "has committed to proceed with rapid negotiations with a goal of establishing a legal framework for TSA use of PNR data for CAPPS II."

This isn't particularly out of line with what Bolkestein's been saying, of course. He and the Commission have a multilateral system for PNR use on their wishlist, and will be in there CAPPS-profiling with the best of them, given the chance. The European Parliament and European Data Commissioners didn't like the US requirements earlier this year, so should now be considering what it might be about the new 'renegotiated' requirements that might make them acceptable. ®